Top 10 Employment Law Myths


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Ellen Aldridge, J.D., Labor and Employment Risk Manager, Nonprofits Insurance Alliance of California
Employment law is tricky, especially in California. Ellen's seminar will cover some of the top issues facing nonprofits, including wage and hour compliance and how to classify workers, administering leave, tips for accommodating disabled employees, and overseeing your staff's use of social media. Join us for some practical advice and leave with a few sample policies you can put to work immediately!

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Top 10 Employment Law Myths

  1. 1. Top 10 HR Myths Presented by: Ellen Aldridge, Esq. Labor & Employment Risk Manager Nonprofits’ Insurance Alliance of California NIAC This presentation is being brought to you by the Nonprofits' Insurance Alliance of California (NIAC) and the Alliance of Nonprofits for Insurance, Risk Retention Group (ANI). Both companies are 501(c)(3) nonprofits that provide specialized liability insurance to more than 12,700 501(c)(3) nonprofits in 31 states plus D.C.
  2. 2. 2 HR Myth #10 It’s O.K. if Supervisors are only subject matter or technical experts since the E.D. can handle any HR matters.
  3. 3. 3 HR Truth #10 Train your Supervisors to spot employment law issues and seek expert assistance when needed. Make sure supervisors have solid communication skills/tools.
  4. 4. 4 HR Action Item #10 Train Managers/Supervisors on: 1.  2.  3.  4.  AB 1825 Sexual Harassment Training Personnel Policies and Procedures Conflict Resolution Performance Reviews
  5. 5. 5 HR Myth #9 We don’t need a reason to terminate our employees because they are “at-will”.
  6. 6. 6 HR Truth #9 Document, document, document performance and behavior issues in the workplace.
  7. 7. 7 HR Action Item #9 1.  Develop a process for documenting performance and behavioral problems. 2.  Use Performance Improvement Plans 3.  Evaluate employees on an Annual Basis 4.  Remember, a legally sound termination should come as no surprise.
  8. 8. 8 HR Myth #8 Employees who complain that they are “harassed” in the workplace or are subject to a “hostile work environment” are always legally protected.
  9. 9. 9 HR Truth #8 Management needs to establish standards of appropriate behavior in the workplace and promptly investigate allegations of unlawful discrimination, harassment or retaliation.
  10. 10. 10 HR Action Item #8 Every Nonprofit should have these policies in their Employee Handbook: 1.  Sexual Harassment and Discrimination Complaint Procedure 2.  Whistleblower Policy 3.  Conflict of Interest Policy
  11. 11. 11 HR Myth #7 It’s best to ignore an employee’s health issue, because of privacy concerns.
  12. 12. 12 HR Truth #7 Employers must engage in an “interactive process” with employees with disabilities to determine whether there are reasonable accommodations which would eliminate barriers to successful performance.
  13. 13. 13 HR Action Item #7 Simple Reasonable Accommodation Process: 1.  Ask, “Is there anything we can do that would help you perform your job”? 2.  Document steps you have taken to accommodate the employee; check back in. 3.  Don’t go through a formal process unless the accommodation is difficult or there is a question if there is a “disability”. 4.  Consult with an HR expert if you have any questions.
  14. 14. 14 HR Myth #6 It’s OK to fire employees who just don’t come to work.
  15. 15. 15 HR Truth #6 Employees cannot be disciplined or terminated for absences that are for legally protected reasons.
  16. 16. 16 HR Action Item #6 1.  Develop a clear absenteeism reporting procedure for planned and unscheduled absences. 2.  Include leave of absence policies in your handbook based on those leave laws that apply to your organization based on its size. 3.  Have an attorney or HR expert review any termination of an employee with legallyprotected absences.
  17. 17. 17 HR Myth #5 Employees get to say whatever they want on Social Media off duty because of Free Speech rights.
  18. 18. 18 HR Truth #5 Employers can discipline and terminate employees for certain on and off duty Social Media activity.
  19. 19. 19 HR Action Item #5 1.  Develop Social Media Guidelines that apply to on and off duty conduct. 2.  Don’t request password access to employee Social Media sites. 3.  Develop clear ownership of the Nonprofit’s Social Media sites and passwords. 4.  Review any termination of an employee for Social Media activity with an HR expert.
  20. 20. 20 HR Myth #4 If you’re a small nonprofit without a payroll system it’s OK to just pay employees when the grant money comes in.
  21. 21. 21 HR Truth #4 There are many California laws concerning the timing and payment of employees’ wages, benefits and business expenses that impose penalties on employers for non-compliance.
  22. 22. 22 HR Action Item #4 1.  Establish twice monthly paydays. 2.  Accurately account for all hours worked with timesheets for non-exempt employees. 3.  Pay out accrued vacation upon end of employment. 4.  Pay final pay in a timely manner. 5.  Track and reimburse for business expenses.
  23. 23. 23 HR Myth #3 We can designate any worker as an Independent Contractor if they want to be a contractor and sign an Independent Contract Agreement.
  24. 24. 24 HR Truth #3 To be properly classified as an Independent Contractor the Nonprofit’s relationship with the worker has to meet specific legal criteria.
  25. 25. 25 HR Action Item #3 If you answer yes to any of these questions, there is a potential problem with an IC designation: 1.  Can the worker quit or be terminated at any time without being legally obligated for failure to complete the job? 2.  Does the worker’s manager assign, review and supervise the individual’s work? 3.  Does the worker perform services that are a part of the regular operations of your agency? 4.  Are there employees doing the exact same job?
  26. 26. 26 HR Myth #2 It’s OK to pay all employees a monthly salary.
  27. 27. 27 HR Truth #2 Only employees that meet both the “salary test” and “duties test” can be classified as overtime exempt under the Executive, Professional or Administrative exemptions of the California Wage Orders.
  28. 28. 28 HR Action Item #2 Audit all exempt classifications 1.salary basis test 2013: $33,280 2014: $37,440 2015: $41,600 2. duties test: 51% of the time the employee is performing exempt functions.
  29. 29. 29 HR Myth #1 As a nonprofit we can require our nonexempt employees attend our fundraising events and we don’t have to pay them.
  30. 30. 30 HR Truth #1 Under the federal FLSA, nonprofit non-exempt employees can only volunteer for events where they are: 1.  Not performing their regular duties, and 2.  There is no detriment or benefit to employees who do or don’t volunteer.
  31. 31. 31 HR Action Item #1 1.  Clarify that volunteer opportunities are truly voluntary. 2.  Confirm that employees are not allowed to volunteer to perform their regular duties 3.  Have employees sign a Volunteer Agreement for each separate volunteer activity.
  32. 32. 32 Thank You! Ellen Aldridge, Esq. Labor & Employment Risk Manager Nonprofits Insurance Alliance of California (NIAC) 831-621-6078 Read my “Ask Rita in HR” columns in Blue Avocado, the on-line magazine for nonprofits